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By taking a higher rent himself, he exercised the right of an unlimited proprietor; but did nothing which was inconsistent with his intention of circumscribing the powers of his successors. In the case of Murray it was found that the Lyon's jurisdiction was not privative, and this implies that the Court of Session has such a jurisdiction; that a question of this nature, while depending in the Lyon Court, may be brought here by advocation, or, after the thing is done, by reduction; and this I hold to be a well-founded doctrine.The surplus rent, which he himself stipulated, may no doubt be levied by the Pursuer; but were he to renew the current leases, without confining the rent of the whole estate to £.1000, as he would then, by a voluntary act of his own, be violating the terms of the entail he would be guilty of an act of contravention. After a good deal of reasoning, the Court came to be of opinion, That the clause was to be held as discharged by the entailer, rebus ipsis et factis. We ought therefore to repel the defence so far as founded on defect of jurisdiction, and remit to the Ordinary [Lyon] to hear on the objections to the title and libel.

[sections 3 and 4 repealed by the Scottish Laws Revision Act of 1906] (5) ITEM Last that becaus the Jurisdictioun of the lyoun king of armez is nocht able to execute dew punishment vpoun all personis that salhappin to offend in the office of armezz Thairfoir our souerane lord with auise of his estaitis in parliament Ordanis and commandis all ciuile Magistratis as thay salbe requirit be the king of armez or ony vtheris in his Name To concur with him To sie the actis maid in his fauouris of his office put to dew executioun in thair iurisdictiounis As aslua To concur with him to the pvneisment and incarceratioun of all sic personis as sall vsurp the bearing of his Maiesties armes efter dew depriuatioun vnder the pane of rebellioun and putting of the disobeyaris to his hienes horne With certificatioun to thame and thay failye being requirit lettrez salbe direct simpliciter to put thame to the horne (italics indicate sections repealed by the Scottish Laws Revision Act of 1906) Our Soveraigne Lord Considering that albeit by the 125 Act of the 12 Parliament holdin by his Maiesties grandfather in the yeir 1592 the usurpation of Armes by any of his Maiesties leidges without the authority of the Lyon King of Armes is expressly discharged And that in order therto Power and Commission is granted to the Lyon King of Armes or his Deputes to visite the whole Armes of Noblemen Barrons and Gentlemen and to matriculate the same in their registers and to fine in One Hundreth pounds all others who shall unjustlie usurp Armes who should bear none and many of these who may in law bear have assumed to themselvis the Armes of their cheiff without distinctions or Armes which were not caried by them or their predicessors Therfore His Maiestie with advice and consent of his Estates of Parliament Ratifies and Approves the forsaid Act of Parliament And for the more vigorous prosecution therof Doth hereby Statute and Ordain that lettirs of publication of this present act be direct to be execute at the mercat cross of the heid Burghs of the Shires Stewartries Bailliaries of Royaltie and Regallitie and Royall Burrowghs chargeing all and sundry [Prelates] Noblemen Barons and Gentlemen who make use of any Armes or Signes armoriall within the space of one yeir aftir the said publication to bring or send an account of what Armes or Signes armoriall they are accustomed to use and whither they be descendants of any familie the Armes of which familie they bear and of what Brother of the ffamilie they are desended With Testificats from persones of Honour Noblemen or Gentlemen of qualitie anent the verity of their haveing and useing those Armes and of their descent as afoirsaid to be delivered either to the Clerk of the Jurisdiction where the persones duells or to the Lyon Clerk at his office in Edinburgh at the option of the party upon their receipts gratis without paying any thing therfore Which Receipt shall be a sufficient exoneration to them from being obleidged to produce again to the effect that the Lyon King of Armes may distinguish the saids Armes with congruent differences and may matriculat the same in his Bookes and Registers and may give Armes to vertuous and well deserving Persones and Extracts of all Armes expresssing the blasoning of the Armes undir his hand and seall of office [For which shall be payed to the Lyon the soume of Tuentie merkes by every Prelat and Nobleman, and Ten merks be every Knight and Baron, and Five merkes by every other persone bearing Armes, and noe more:] And his Maiestie hereby Dispensses with any penalties that may arise be this or any preceiding act for bearing Armes befor the Proclamation to be issued hereupon And it is Statute and Ordained with consent forsaid that the said Register shall be respected as the true and unrepeallable rule of all Armes and Bearings in Scotland to remain with the Lyon office as a publict Register of the Kingdome and to be transmitted to his Successors in all tyme comeing And that whosoevir shall use any other Armes any manner of way aftir the expireing of year and day from the date of the Proclamation to be issued hereupon in maner forsaid shall pay One Hundred pounds money toties quoties to the Lyon and shall likewayes escheat to his Maiestie all the moveable Goods and Geir upon which the saids Armes are engraven or otherwise represented And his Maiestie with consent forsaid Declaires that it is onlie allowed for Noblemen [and Bishopes] to subscrive by their titles And that all others shall subscrive their Christened names or the initiall letter therof with there Sirnames and may if they please adject the designations of their Lands prefixing the word Of to the saids designations And the Lyon King at Armes and his Brethren are required to be carefull of informeing themselvis of the contraveiners heirof [and that they acquaint his Maiesties Councill thewith, who are hereby impowered to punish them as persones disobedient to, and contraveiners of the Law:] It is likewise hereby Declaired that the Lyon and his Brethren Heraulds are Judges in all such causes concerning the Malversation of Messingers in their office and are to enjoy all other priviledges belonging to their Office which are secured to them by the Lawes of this Kingdome and according to former practice. The Gentlemen found on the Interdictum uti possidetis : the Lyon says, it is but vetustas erroris, and an usurpation. The tradition was, that most of the old records of arms were destroyed by fire ; there are, however, in the office several old manuscript books of heraldry which are of great use in matriculation.as the arms of the Moirs of Leckie; and if used, without addition, diminution, or alteration of any kind, by the pursuer and the said heirs, that this shall be held sufficient implement of the provision relating to the arms in the entail." The defender contended, That it was a lawful condition in a tailzie to a stranger that he should bear the granter's arms ; and quoted Sir George Mackenzie's Essay on Heraldry, p. But this opinion does not affect the present action, which is not competent, as the pursuer does not claim the arms given to the defender. I found it impossible to form a satisfactory opinion without looking to the summons; and I deny the power of a Lord Ordinary to ask the Court for an opinion on an abstract question of law, without reference to the action before him. Held, 1st, That it was not competent for the Lord Lyon to enquire whether the heir of line or the heir-male was entitled to the heraldic honours of the family,that question being, in this ease, decided by the Act of Parliament.It is on the competency of this particular action that we are to judge; and I entertain great doubts of its competency, as it does not sufficiently set forth that what the Lord Lyon has done is to the prejudice of the pursuer. SIR ROBERT KEITH DICK CUNYNGHAM, BART., Respondent. 2d, That under the Act of Parliament the heir of line alone was entitled to supporters, and it was incompetent in the Lord Lyon to grant them to the heir-male.But, as to matriculation, in consequence of the Act 1672, that was requisite in every case, and is so found by the Ordinary in this case. Among others, it contained the following condition: "Nor shall it be in the power of the heirs-male of my body, or other heirs foresaid, substituted to them, to increase the rental above £.1000 Sterling per including kain and casualties, so as the rents may be always well and regularly paid ; but without prejudice to the heir in possession to take grassums for any lease he may grant, not exceeding 19 years, of any part of said lands." The rental of the estate, at the date of the entail, was £.895 Sterling ; and when the leases expired, Mr. But a question remains behind, whether the summons in the present case is so conceived, that it could be entertained by any Court.The fees, no doubt, are fixed by the Act 1672, but Lord President thought that, as in other regulations of fees about that period, practice and change of times had introduced an alteration ; so this might be the case here, and therefore he proposed to remit that point to the Ordinary to hear further; which was agreed to. Moir augmented it, without any regard to this clause. without including any rent for 150 acres in his natural possession. Robert Moir succeeded him, under the entail, and brought an action against the substitutes, concluding, that the said George Moir having increased the rental above the sum of £.1000. The pursuer had his own arms matriculated in 1797, and he does not say that they are erroneous; nor does h set forth in his summons that he is the true chieftain or that he has right to the arms of the defender.

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